Wismer

The sole question in this case is whether the tract of land in controversy, consisting of 80 acres, passed to the plaintiff in error under and by virtue of the act of Congress of July 2, 1864 (13 Stat. p. 365, c. 217). It is in effect conceded that it did, if on the date the railway company definitely fixed the line of its railroad and filed a plat thereof in the office of the Commissioner of the General Land Office, to wit, October 4, 1880, the United States had full title thereto, and the same was not reserved, sold, granted, or otherwise appropriated, and was free from pre-emption or other claims or rights.

The case is ejectment, and was submitted in the court below upon an agreed statement of facts, from which statement we quote as follows :

The agreed statement of facts further shows that the President, by-executive order made January 18, 1881, set aside and reserved for the use and occupancy of the Spokane Indians the lands embraced in the foregoing agreement with them and in the order of Gen. Howard, which lands included the tract here in controversy.

As already said, the only question in the case is whether at the time the line of the Northern Pacific Railroad Company…